Citation Nr: 1116807
Decision Date: 04/29/11 Archive Date: 05/05/11
DOCKET NO. 05-25 939 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for irritable bowel syndrome (IBS).
2. Entitlement to an initial rating in excess of 10 percent for the service-connected residuals of a cervical spine fracture.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
L.B. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from November 1999 to October 2003.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that granted service connection for residuals of a cervical spine fracture and assigned a 10 percent rating, effective October 15, 2003. The January 2005 rating decision also denied service connection for hearing loss, major depressive disorder, IBS, and lumbar pain. The Veteran appealed the issue of entitlement to a higher initial rating for the service-connected residuals of a cervical spine fracture and also appealed the denials of service connection for major depression, IBS and lumbar pain.
The Veteran requested to appear for a Travel Board hearing when he perfected his appeal in August 2005. The Veteran was scheduled for the hearing in November 2006, and he was provided notice of the hearing date in October 2006. The Veteran failed to report for his hearing; he has not provided evidence of good cause for his failure to report and has not asked that the hearing be re-scheduled. Accordingly, his request for a Travel Board hearing is considered to be withdrawn. 38 C.F.R. § 20.704(d).
The case was initially before the Board in February 2008 at which time it was remanded back to the RO, via the Appeals Management Center for additional development of the record. During this time, in May 2009, the RO issued a rating decision that granted service connection for adjustment disorder with depressed mood and assigned a 30 percent rating, effective October 15, 2003. As this grant represents a full grant of benefits on appeal as to the issue of entitlement to service connection for major depression, that issue is no longer in appellate status or before the Board at this time.
With regard to the remaining two issues, the RO issued a supplemental statement of the case upon completion of the requested development and returned the case to the Board.
In a December 2009 decision, the Board denied the issue of entitlement to service connection for a low back disorder. The issues of entitlement to service connection for IBS and entitlement to an initial rating in excess of 10 percent for the service-connected residuals of a cervical spine fracture were once again remanded back to the RO, via the Appeals Management Center (AMC), in Washington, DC for additional development.
The December 2009 Board remand instructed the RO to schedule the Veteran for VA examinations to assess the likely etiology of the IBS and the severity of the service-connected cervical spine disability. Examinations were scheduled per the remand orders, but the record reflects that the Veteran called the VAMC and cancelled the examinations, indicating a refusal to appear. The VAMC indicated that the Veteran intended to withdraw his appeal, although there is no written notice of this request in the claims file. Because the claims file did not contain any written request from the Veteran or his representative indicating an intent to withdraw his appeal, the RO subsequently attempted, on at least three occasions, to contact the Veteran and request that he provide written declaration of his intent to either continue his appeal or withdraw his appeal. The Veteran never responded to any of those requests. Although the VAMC considered the appeal withdrawn, the RO correctly issued a supplemental statement of the case (SSOC) and returned the case to the Board for appellate disposition.
Only an appellant or his authorized representative may withdraw an appeal. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing, and they must include the name of the appellant, and applicable VA file number and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirely, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 20.204.
Because neither the Veteran nor his representative has requested, in writing, to withdraw his appeal, the RO and the Board are without authority to dismiss this appeal. In light of the foregoing, however, the RO has complied, to the extent possible, with the December 2009 remand instructions and any further action on the RO's part would be futile. Given the RO's substantial compliance with the December 2009 remand orders, no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
FINDINGS OF FACT
1. The Veteran cancelled his scheduled VA medical examinations, indicating a refusal to report, without good cause shown; and these VA examinations were scheduled for the specific purpose of determining the likely etiology of the IBS and the current severity of the service-connected cervical spine disability.
2. The Veteran had IBS prior to service and it did not worsen beyond the natural progression during service.
3. The evidence of record does not show forward flexion of the cervical spine limited to 30 degrees or less; or a combined range of motion of the cervical spine limited to 170 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.
4. Ankylosis of the cervical spine has never been demonstrated, and incapacitating episodes of DDD of the cervical spine have never been demonstrated.
CONCLUSIONS OF LAW
1. IBS clearly and unmistakably preexisted active duty service and was not aggravated by such service; the presumption of soundness at entry is rebutted. 38 U.S.C.A. § 1111 (West 2002).
2. IBS was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 101, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.655 (2010).
3. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected residuals of a fractured cervical spine have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.655, 4.1-4.7, 4.71a, Diagnostic Codes 5003, 5010, 5237 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance
Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004).
The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
The RO provided the appellant pre-adjudication notice by letter dated in July 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.
Although the notification did not advise the Veteran of the criteria regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits with respect to the IBS claim will be assigned as the claim for service connection for IBS is denied.
With regard to the increased rating claim, here, the Veteran is challenging the initial rating assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, no further notice was required once service connection was granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). That notwithstanding, the RO cured the defect by sending a subsequent letters to the Veteran in February 2008 and October 2008 that specifically notified the Veteran regarding the assignment of disability ratings and effective dates for any grant of service connection. The claim was thereafter readjudicated by way of a May 2009 supplemental statement of the case.
Additionally, as noted in the Introduction section above, the RO sent the Veteran three letters inquiring about his intentions with regard to his appeal after he cancelled his scheduled VA examinations that were ordered by the Board in conjunction with his appeal. The RO specifically inquired as to whether the Veteran intended to withdraw his appeal, as this was what the VAMC had indicated. The Veteran never responded to any of the RO's requests, and never provided good cause for why he cancelled his VA examinations. VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991).
Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007).
In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran opportunity for physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.
At this point, it must be noted that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record; however, when the examination is scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Here, both claims on appeal stem from an original rating and the examinations were scheduled in conjunction with a claim of service connection and a claim to determine the initial rating to assign following a grant of service connection; thus, the claim shall be rated based on the evidence of record.
VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.
II. Service Connection - IBS
The Veteran maintains that his pre-existing IBS was aggravated during service.
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).
This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
In sum, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).
A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).
The presumption of aggravation is not applicable unless the pre-service disability underwent an increase in severity during service. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The determination of whether a preexisting disability was aggravated by service is a question of fact. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether such worsening constitutes an increase in disability or was the result of natural progression of the injury or disease. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition (as contrasted to the symptoms) has worsened. See Davis (John F.) v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). Evidence of the appellant being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).
As noted, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1).
In this case, the Veteran did not report on his Report of Medical History at entrance that he had gastrointestinal problems. Similarly, no gastrointestinal problems were noted on his entrance physical examination in July 1999. STRs show that the Veteran was treated in service for IBS. For example, an April 2000 STR notes complaints of abdominal cramping and anorexia for one week, progressively getting worse. The Veteran was treated for similar symptoms in March 2003 and August 2003. Records from a Physical Evaluation Board during service noted that the Veteran had IBS at that time, although there was no mention of when the Veteran's symptoms began. Thus the Veteran is presumed sound at entry into service, unless there is clear and unmistakable evidence to show otherwise. In this case, there is clear and unmistakable evidence to rebut the presumption of soundness at entry.
For example, the Veteran reported to a VA examiner in September 2004 that he had long term stomach problems and a pediatrician had diagnosed him with IBS when he was in the 8th grade. He reportedly had a colonoscopy for diagnostic work-up at that time and was treated for episodic flare-ups with Imodium. The examiner noted that the condition pre-existed service. The examiner also indicated that the stress of the military and the Veteran's wife's illness aggravated his symptoms in the past. The Veteran reported approximately four bowel movements daily which were described as being loose. He also had urgency of bowel evacuation and it typically occurred either during mealtime or immediately following meals. Only infrequently did he have fecal leakage or involuntary bowel movements. They were usually associated with episodes of nausea. He did not wear any type of padding. He also reported having hemorrhoids in the military and had some bleeding rectally greater than one year ago. He tried to avoid gas forming foods or excessive intake of fruits. He reported abdominal bloating and gas formation, and chronic indigestion.
The diagnosis was IBS, and the examiner specifically noted that the disorder pre-existed military service. The examiner did not opine, one way or another, whether the Veteran's pre-existing IBS was aggravated during service beyond the natural progression.
VA treatment records from April 2005 show that the Veteran was treated for an acute attack of IBS, with abdominal pain and diarrhea lasting several days. A May 2005 VA GI consult note reveals that the Veteran reported intermittent diarrhea since the 8th grade, lasting for about 15 years. This occurred 4-5 times daily, sometimes alternating with constipation lasting for 2 days. The diarrhea was accompanied by cramping abdominal pain.
At a July 2008 VA examination, the examiner noted a review of the claims file and agreed with the VA examiner of September 2004 that the Veteran's IBS preexisted service. Specifically, the examiner noted that the Veteran himself told the examiner that the IBS pre-existed service, and this was corroborated by the other VA records in the file including an April 2005 GI consult noting that the condition existed since the 8th grade, as well as the September 2004 VA examination noting that the condition pre-existed service. Nonetheless, the examiner did note that there was no documented evidence of a pre-existing diagnosis. Regardless, however, the examiner found the Veteran's statements credible and concluded that the IBS pre-existed service. In this regard, the examiner also determined that it was clear and undebatable that the pre-existing IBS did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the natural progression of the disease. The examiner rationalized that the Veteran did not seek frequent medical attention for the IBS during service, and there was no evidence that the condition worsened to such a degree in service that the Veteran was referred to a GI specialist. The condition did not result in any invasive procedures during service and there was no evidence that the condition was worsened to such a degree that the Veteran required special medications or unusual doses of his usual medication. The evidence in service shows that the Veteran gained weight during service, which, according to the examiner, went against a theory that the condition worsened beyond natural progression. Moreover, the examiner noted that since discharge, the IBS improved, per the Veteran's own admission. The Veteran gained weight since discharge, going from an in-service weight of 184 to a current weight of 242 pounds. That fact supported the examiner's opinion that the IBS did not permanently worsen. The examiner noted that the Veteran has improved to the point that he no longer needs his IBS medication and there was no indication that a GI specialist referral was necessary at this point. The examiner also noted that the Veteran had missed about 10 days of work during the prior one year period due to his IBS, but the examiner specifically noted that this did not represent a permanent worsening of his IBS disease.
In a June 2009 statement in support of his claim, the Veteran maintained that although he had "problems when he was younger" he was never diagnosed with IBS prior to service. The Veteran also reported that he suffered severe IBS attacks during service, and therefore, the Veteran maintains that his IBS was either incurred in or aggravated in service. He further asserted that his physicians told him that his IBS was aggravated by his psychiatric condition and therefore his IBS was aggravated during service. The Veteran's wife, who indicated that she has a bachelor's degree in psychology, also reported that IBS was aggravated during service as evidenced by his visits to sick call. She also indicated that a specialist told her that stress and anxiety can lead to aggravation of the disease.
In light of the contentions, the case was remanded by the Board to schedule the Veteran for a new VA examination taking into account the Veteran's statements. As noted in detail above, the Veteran cancelled those examinations and did not provide good cause for his unwillingness to report.
Information obtained from that examination could have been significant in the development of the Veteran's claim of service connection for IBS. VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). Because the Veteran's examination was canceled, the claim must be adjudicated based on the evidence of record.
In this case, there is clear and unmistakable evidence that the IBS pre-existed service and was not aggravated by service. Although the Veteran's entry physical notes that he is sound at entry, the Veteran reported to more than one VA examiner that he had stomach problems dating back to the 8th grade. The Veteran is certainly competent to report GI upset of long-standing duration and his statements are found to be credible and probative. In September 2004, the Veteran reported that he had long term stomach problems and that a pediatrician diagnosed him with IBS when he was in the 8th grade. In May 2005, the Veteran reported that had intermittent diarrhea since the 8th grade. There is no medical evidence of record dated prior to service. The evidence dating from his time in the military shows that he has IBS, in part manifested by diarrhea. The examiner in July 2008 specifically noted that his IBS pre-existed service. The examiner noted the diagnoses of IBS of record and the admissions of the Veteran to that examiner and others that his IBS pre-existed service. The examiner took into account the Veteran's statements that he had GI symptoms dating back to the 8th grade including abdominal cramping, burning abdominal pain, and loose stools. The examiner opined that the current IBS pre-existed service. Thus, the Board finds that the evidence is clear and unmistakable that the Veteran's IBS pre-existed service.
The Veteran is competent to report his GI symptoms prior to service and during service. The Veteran maintains that his symptoms became much more severe during service and his wife has asserted that the seriousness of his condition is evidenced by the visits to sick call in service. Again, the Veteran is certainly competent to report the severity of his symptoms, and the fact that they occurred more often, with a greater intense pain, more diarrhea, nausea, and vomiting during service, for example. There is no reason to doubt his credibility and his statements are considered probative. In addition, visits to sick call are shown in service. However, the key here is whether the increase was permanent. To rebut the second prong of the presumption of soundness, the increase in severity of a pre-existing disability must be permanent in nature, beyond the natural progression of a disability. Here, the Veteran explained that his bouts of IBS were tied to stress and anxiety, and flared up during service. As noted by the examiner in July 2008, however, the Veteran's IBS became less severe after service. The examiner provided a detailed rationale for finding that the disorder did not worsen including no evidence showing referral to a GI specialist, no hospitalizations or invasive procedures, no special medications or unusual doses of his usual medication, and evidence showing that he had gained weight. Following service, it was noted that he has gained a significant amount of weight and is now off his only IBS medication with no progression of the disease. He last saw a GI consultant in April 2005 and while he did lose 10 days of work in the past year, that was not unusual for IBS and was not considered a worsening of the condition. In light of the opinion, which is supported by a detailed rationale, the Board finds that the evidence is clear and unmistakable that the condition was not aggravated beyond the natural progression by service.
Importantly, as noted above, temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition (as contrasted to the symptoms) has worsened. See Davis (John F.) v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). Evidence of the appellant being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).
As the evidence is clear and unmistakable that there was no permanent increase in severity of the pre-existing IBS beyond the natural progression; service connection for IBS is not warranted.
III. Increased Rating - Cervical Spine Fracture
The Veteran seeks an initial rating in excess of 10 percent for the service-connected residuals of a cervical spine fracture.
Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.
The rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20.
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.
It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.
Disabilities of the spine, such as cervical strain (Diagnostic Code 5237) or degenerative arthritis of the spine (Diagnostic Code 5242), for example, are to be rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under the rating formula in effect since September 26, 2003, intervertebral disc syndrome should be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.
Under the General Rating Formula for Diseases and Injuries of the Spine, as it applies to the cervical spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 30 percent rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine.
A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine.
A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine
Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25.
When rating based on incapacitating episodes, a 10 percent rating is assigned based on incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
Traumatic arthritis is rated pursuant to Diagnostic Code 5010, arthritis, due to trauma, substantiated by x-ray findings. Diagnostic Code 5010 in turn requires that the disability be rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 calls for rating degenerative arthritis on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, which in this case would be Diagnostic Code 5290 (limitation of motion of the cervical spine) and the General Rating Formula for Diseases and Injuries of the Spine. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
At VA examination in September 2004, the Veteran reported neck pain, with stiffness, but no weakness. The Veteran reported a tingling sensation at the medial right forearm, but no numbness in the upper right extremity, and no symptoms associated with the left side. Examination of the neck revealed no tenderness to palpation of the entire spinal column or the paravertebral muscles. Forward flexion of the cervical spine was 0 to 45 with pain in the lower cervical spine. Extension was 0 to 30 without complaints of pain. Right lateral flexion was 0 to 30 with discomfort in the paravertebral muscles to the left of the cervical spine. Left lateral flexion was 0 to 45 degrees with no pain. Right and left lateral rotation was 0 to 80 without pain. Repetitive range of motion was limited primarily by pain. The examiner did not specifically indicate how much the motion was additionally limited due to pain after repetition. Cervical spine x-rays taken on the day of ht examination showed an old fracture of C4 which appeared well-healed. There was a small fragment seen anterior to the superior end-plate and was well-corticated. The C7-T1 articulation was not clearly seen. The impression was old post-traumatic changes. The diagnosis on examination was history of cervical spine fracture, military related, with x-rays showing old posttraumatic changes.
At a VA examination in July 2008, the examiner noted that the Veteran had no neurological symptoms related to his cervical spine condition. The Veteran reported mild flare-ups of his spinal condition. They occurred weekly and lasted for hours at a time. They were precipitated by lifting, twisting and lying down for a long time. The Veteran reported that the resulting functional limitations were mild. There was no objective evidence of spasm, atrophy, guarding, weakness or tenderness. There was no pain with motion either. On examination there was no abnormal spinal curvatures, posture was normal, and the head position was normal and symmetrical in appearance. Motor examination was normal. Sensory examination was normal. Reflex examination of the upper extremities (cervical spine) was normal. There was no cervical spine ankylosis. Flexion was 0 to 45 degrees, with pain on active and passive motion beginning at 35 degrees. Resisted isometric movement was not normal because of pain. There was pain on active motion, but not passive motion. There was also pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Extension was from 0 to 45 degrees, with pain beginning at 40 degrees on active and passive motion. Resisted isometric movement was not normal because of pain. There was pain on active motion, but not passive motion. There was additional pain after repetitive use. There was no additional loss of motion on repetitive use of the joint.
Lateral flexion was 0 to 45 degrees to the right and to the left. There was no pain on active or passive motion, and no pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Right and left lateral rotation was from 0 to 80 degrees, with no pain on active or passive motion or after repetitive use. There was no additional loss of motion on repetitive use of the joint.
Lateral rotation was 0 to 80 degrees to the right and the left. There was no pain on motion, no pain after repetitive use and no additional loss of motion on repetitive use of the joint.
Lasegue's sign was negative. The examiner noted that the percentage of loss of height related to the C5 fracture was less than 10 percent. The examiner noted that the Veteran's cervical spine condition did not cause significant pain and it was not associated with any neurological disability. Additionally, the examiner noted that the condition did not affect the strength of his neck muscles. Finally, the examiner noted that the disability did not affect the Veteran's ability to obtain or maintain substantially gainful employment. The diagnosis was status post avulsion fracture of the endplate to C5 vertebral body without neurological impairment; degenerative arthritis of the cervical spine. There were no significant effects on usual daily activities. Only mild effects were noted with respect to some strenuous activities such as chores, exercise, and sports.
In contrast to the examiner's report, x-rays from July 2008 indicate that the Veteran did in-fact have muscle spasms associated with the service-connected disability. Additionally, the radiologist who read the July 2008 x-ray of the cervical spine noted that " further gross and significant abnormality is identified with limitation at C1-2. Repeat open-mouth odontoid view with optimal technique is advisable." There is no indication that this was ever accomplished.
In June 2009 statements, the Veteran and his spouse reported that his neck pain is quite severe, more so than what appears to have been described on examination in July 2008. Additionally, the Veteran and his wife questioned the examiner's declaration that there was no neurological impairment associated with the cervical spine disorder. As a result, the matter was remanded in December 2009 to resolve this issue. However, as noted above, the Veteran canceled his examinations scheduled in conjunction with his claim. Thus, the matter remains unresolved and the objective evidence of record does not support the Veteran's contentions that a higher rating is warranted.
In sum, there are two VA examinations of record, and neither examination shows that the schedular criteria are met for the assignment of a rating in excess of 10 percent for the service-connected cervical spine disability. The evidence of record does not show that the Veteran has incapacitating episodes of intervertebral disc syndrome. Additionally, the evidence of record does not support the assignment of a rating in excess of 10 percent under the criteria for rating disabilities of the spine under the General Rating Formula. Neither the September 2004 examination nor the July 2008 examination provided range of motion measurements that would warrant the assignment of the higher rating. The medical evidence shows cervical forward flexion consistently more than 30 degrees, even when taking into consideration pain. Although he experienced pain on motion and it was assessed upon examination in 2008 that his pain began at 35 degrees on flexion, this limitation is contemplated by the 10 percent rating. Even taking into account the point at which pain begins, his motion is not limited 30 degrees or less. Moreover, to the extent that the Veteran reports weekly flare-ups that last for hours, he assessed the functional limitations as mild. His reports of mild weekly flare-ups, which are considered competent, credible and probative, do not show that his motion is limited to 30 degrees of flexion or less, combined range of motion is not greater than 170 degrees or that he has muscle spasms or guarding resulting an abnormal gait or spinal contour. Therefore, the mild weekly flare-ups are contemplated by the 10 percent rating. In addition, the combined range of motion of the cervical spine is more than 170 degrees. In 2004, he had flexion to 45 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 45 degrees and bilateral lateral rotation to 80 degrees. In 2008, he had pain on flexion beginning at 35 degrees, pain on extension beginning at 40 degrees, bilateral lateral flexion to 45 degrees without pain and bilateral lateral rotation to 80 degrees. The range of motion studies in both 2004 and 2008 show that he has significantly greater than 170 degrees of combined range of motion. Further, ankylosis has never been shown.
Although evidence of arthritis of the cervical spine is demonstrated on examination, the Veteran is already in receipt of a 10 percent rating based on limitation of motion due to pain; thus, an additional rating based on arthritis would amount to pyramiding, which is to be avoided. Importantly, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. There do not appear to be separate and distinct manifestations that could be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).
As such, because the same symptoms, pain and limited motion of the cervical spine (neck) cannot be compensated under two different diagnostic codes, arthritic pain and limited motion, if any, does not warrant a separate compensable evaluation under Diagnostic Code 5010-5003. 38 C.F.R. § 4.14.
As noted previously, the Veteran canceled examinations that were scheduled to specifically address the Veteran's contentions regarding the severity of his service-connected cervical spine disability. This examination may have provided pertinent evidence to support the assignment of a higher rating; however, the lack of evidence at this juncture prevents the assignment of a rating in excess of 10 percent because the criteria for a higher rating are not more nearly approximated at any time during the appeal period.
The Board has also considered whether there are separate objective neurological abnormalities associated with the cervical spine condition. However, since the effective date of service connection, no neurological abnormalities are shown, as noted above. While the Veteran did report symptoms in 2004, a neurological abnormality was not noted by the examiner. Moreover, no other evidence of record thereafter shows the presence of associated objective neurological abnormalities and the Veteran did not report for VA examinations which might have provided relevant information. Accordingly, a separate evaluation for associated neurological manifestations is not warranted.
Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, there has been no showing that the service-cervical spine disability under consideration here has otherwise rendered impracticable the application of the regular schedular standards. The regular schedular standards contemplate the symptomatology shown in this case. In that regard, the examiner in 2008 found that there were no significant effects on employment due to the service-connected disorder. While the Veteran has reported that he has mild weekly flare-ups, the Board found above that these are contemplated by the currently assigned rating. His currently assigned rating takes into account the limitation of motion and muscle spasms and tenderness that do not result in an abnormal gait or spinal contour. In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular schedular standards. As such, referral for consideration for an extraschedular evaluation is not warranted here. Thun v. Peake, 22 Vet. App. 111 (2008).
ORDER
Service connection for IBS is denied.
An initial rating in excess of 10 percent for the service-connected residuals of a cervical spine fracture is denied.
____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs